Mitigating PFAS is going to be expensive – very expensive. Water systems can seek funds from the companies responsible

Now that the EPA has finalized the first-ever national, legally enforceable drinking water standards to protect communities from six widespread PFAS compounds, public water systems will be facing significant implications. According to the new National Primary Drinking Water Regulation, initial monitoring for these PFAS must be completed by 2027 (and followed by ongoing monitoring), and by 2029, systems must mitigate these PFAS if drinking water levels exceed the federal maximum contaminant levels (MCLs).^[i]

The costs that will be imposed on drinking water plants affected by PFAS are going to be blistering — and at breakneck speed to boot. These costs include, and are not limited to

Initial and ongoing monitoring and testing
Consulting engineering services related to piloting and designing treatment systems
Mitigation technology piloting
Design, purchase and installation of treatment systems
Operator training and certification
Ongoing operation and maintenance of treatment systems
Disposal and/or destruction of PFAS-contaminated filter media
Public communication regarding PFAS levels and violations
Additional staff needed to manage PFAS response

According to a report from the American Water Works Association (AWWA), as many as 7,500 drinking water utilities will need to invest more than $50 billion in new or upgraded PFAS treatment technology over the next 20 years to comply with new PFAS standards, with an additional $3.5 billion needed annually for operating costs.^[ii] Most likely, wastewater treatment plants also will eventually be required to play a role, adding further costs to utilities.

The costs to a specific utility will vary greatly depending on its flow rate, the level of PFAS contamination needing treatment, and the technology the plant ultimately deploys. To provide a very rough idea, the cost of a granular activated carbon (GAC) treatment plant can start at around $1 million or more to install, even for a small well, and annual operation and maintenance costs for a single well can start in the five figures. Most water systems, especially those in rural America, simply cannot afford this expense.

Public funds are only a partial solution

To achieve compliance by 2029, water systems will need to tap every available source of funds. The Bipartisan Infrastructure Law (BIL) has earmarked more than $50 billion for investments in the nation’s water infrastructure — however, not all these funds can be used for PFAS mitigation. Only $10 billion is specifically available to address PFAS and other contaminants of emerging concern, while $15 billion is specifically available only for lead pipe remediation. The majority of the remaining $26 billion is allocated to Drinking Water and Clean Water State Revolving Funds, the use of which will be determined by individual states.^[iii]

Drinking Water Treatment

Spokane City joins lawsuit against PFAS manufacturers

The city submitted a complaint that’s part of a larger lawsuit.

May 1, 2024

A note on CERCLA

Ten days after the EPA finalized the MCLs, the agency designated PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA – also known as Superfund). As CERCLA imposes statutory liability for owners or operators of sites where there are or have been releases of hazardous substances, entities such as wastewater utilities will become potentially liable for past releases of PFAS, regardless of who was responsible for the release.

EPA has indicated that it “does not intend to pursue entities where equitable factors do not support seeking response actions or costs under CERCLA, including, but not limited to, community water systems and publicly owned treatment works, municipal separate storm sewer systems, publicly owned/operated municipal solid waste landfills, publicly owned airports and local fire departments, and farms where biosolids are applied to the land” but instead “will focus on holding responsible entities who significantly contributed to the release of PFAS into the environment, including parties that manufactured PFAS or used PFAS in the manufacturing process…”^[iv]However, the EPA’s enforcement discretion policy will not shield entities from liability, meaning that they may become targets of cost recovery lawsuits by other parties.

Litigation has been an effective way to recover costs

While public funding through the BIL is an unprecedented investment in the nation’s water infrastructure, it will not be enough on its own, and some utilities are already facing the need to increase rates for customers. But a large and growing cohort of utilities is instead choosing to hold PFAS polluters accountable for cleaning up the contamination they caused, which is proving to be an effective and just course of action.

Hundreds of municipalities and utilities have filed lawsuits against PFAS manufacturers like 3M, DuPont and others, resulting in billions of dollars in settlements to offset treatment costs. These lawsuits have been grouped into an Aqueous Film-Forming Foam (AFFF) Multi-District Litigation (MDL). The MDL, grouped together multiple lawsuits filed by public water providers, property owners, personal injury plaintiffs and sovereigns (states, territories and tribes under the claim that the plaintiffs were negatively affected by PFAS-laden firefighting foam (known as AFFF)) and other products containing PFAS. DuPont and its related companies, Chemours and Corteva, offered U.S. public water systems a settlement of $1.1859 billion in June 2023, and shortly thereafter, 3M agreed to pay qualifying U.S. public water providers up to $12.5 billion over 13 years. Both settlements received final approval in early 2024.

The settlements apply to all qualifying public water providers unless they expressly opted out. So even if a water system did not file a claim in the MDL, it may be eligible to receive compensation if it submits the appropriate forms and paperwork before the deadlines, which are expected to be finalized shortly.

Based on adjusted flow rates and detected PFAS levels, water systems can see their estimated settlement amount on the MDL PFAS settlement website.

But this MDL is not the only active litigation, and DuPont and 3M are not the only companies getting sued for PFAS contamination. Also, as part of the MDL, Tyco Fire Products, a subsidiary of Johnson Controls International, recently reached a $750 million settlement with public water systems with PFAS detections before May 15, 2024. There are several other defendants in the ongoing MDL, and whether additional settlements for water systems will be reached, litigation has shown significant momentum to help recover clean-up costs.

We are just beginning to pull the thread on responsibility for PFAS pollution. The companies that have benefitted financially for decades at the expense of human and environmental health are now being called to account. Public water systems are being conscripted to the front lines of cleanup, but neither they nor their ratepayers should have to bear the brunt of these monumental costs.